Yesterday the U.S. Court of Appeals for the Sixth Circuit issued yet another divided panel opinion in a habeas case. In Hamilton v. Morgan, the panel majority denied the Quinn Hamilton's habeas petition seeking to overturn his state court conviction for armed robbery and evading arrest on the grounds that he was prejudiced by the state court's decision to declare a potential witness unavailable for trial and permit the state to introduce prior testimony from a preliminary hearing and suppression hearing instead. Judge Eugene Siler, joined by Judge Alice Batchelder, found that the state made sufficient good faith efforts to procure the relevant witness before trial, and that when these efforts were unsuccessful, "the decision of the Tennessee courts to allow prior testimony of a witness deemed unavailable for trial was neither 'contrary to' nor 'an unreasonable application of' federal law."

Judge Karen Moore dissented. According to Judge Moore, the prosecutor failed to meet his burden of showing that the witness was unavailable because "he submitted no evidence in support of his motion" (emphasis in original), and because the reliance upon prior testimony "almost certainly influenced the jury's verdict." Wrote Moore, "[b]ecause the majority's decision effectively eradicates the burden of proof that the Supreme Court established, I respectfully dissent."

I think I'm with the dissent on this one. My first boss out of law school, our local district attorney, was a big stickler for making sure that both the prosecution and the defense submitted actual evidence in support of or opposition to motions. Here, the appellate court relies on facts which are contained only in the prosecution's motion to declare the witness unavailable. The district court should have required the prosecutor to provide testimony, or at least submit an affidavit, attesting to the facts recited in the memorandum.

For example, the majority relies in part on this description of the facts:

Second, the State worked diligently to produce Shelton, right up until the time of trial. On January 2, 2001, the prosecution learned that Shelton was willing to travel if he could go through Atlanta, Georgia. However, Shelton's commander advised that it was too late to arrange any flights for Shelton from Germany through Atlanta in the days remaining before trial.

The majority itself notes that: "These facts were taken from the State's third motion to declare the witness unavailable and to use his former testimony at trial." A motion is not evidence and is not generally made under penalty of perjury. The Court has no legal authority to base its decision on facts not actually in evidence.

PatHMV: I'm not a legal professional, but it seems to me that the dissent is setting too high a bar here. At some point the courts have to rely on the good faith of prosecutors and defense attorneys assetions to the court; otherwise it's possible to conceive of an infinite regression of proof. For example, in this case, if the prosecutor provided a written communication by Shelton's commanding officer, might not the defense, in line with your apparent argument, require proof that this communication was in fact from the commanding officer and proof that his assertions in the letter were correct, and so on, and son , ad infinitum.

No. It's a fundamental point that statements made in pleadings and motions are not evidence. While professional obligations require that the allegations contained in such filings must be based on a good faith belief that they are true, there is no oath associated with such filings and they are not made under penalty of perjury.

Had the prosecutor submitted an affidavit from someone in his office, sworn under penalty of perjury, that described the efforts that had been made to locate the witness and obtain his attendance, that could have been offered as evidence. But a motion itself is never evidence.

AppSocRes,
I think your ad infinitum hypothetical is contrary to the rules of evidence, and wouldn't result in the problem you anticipate. PatHMV is right, unless there's something else going on: an affidavit into evidence should have been required according to the prosecutor's burden of production.

One thing, this was apparently taken from the THIRD motion to declare the witness unavailable. And, now, they say it's too late to arrange a flight. Why wasn't the flight arranged after the first or the second. Secondly, it says that Shelton was WILLING to travel if he could go through Atlanta Georgia. Who gives a damn if he's willing. You serve a subpoena on him while he's in the state and then its his job to figure out how to get back for trial. PatHMV seems to have it right, but only in part. Why is someone unavailable three separate times?

After having read only the first part of the case, I'm forced to note two other things. 1) This guy is the victim, if he doesnt' care enough to make himself available, why should the State of Tennessee. 2) He explicitly said that he was going to boot camp soon at his first preliminary examination. Why wasn't a subpoena prepared that day? I'm sorry, but I could maybe see the State's point if this guy goes to Germany and they only find out about it later. But if someone tells you that they are leaving the country, you subpoena them quick like.

As a habeas practitioner (on the government), albeit outside the 6th Circuit (I have the joy of working in the 9th), I read the decision with interest.

It is an interesting case, and certainly not as "bright line" as some posts would suggest. I re-read Ohio v. Roberts to see what standard the Supreme Court requires of the government. Unfortunately, the case is rather unhelpful, requiring merely that the government "demonstrate" the unavailability of the missing witness.

Frankly, the Tennesee Court of Criminal Appeals has more authority than the 6th Circuit to interpret Tennessee evidence law and determine the threshold issue of whether the state's efforts were sufficient.

With respect to the confrontation clause, the Supreme Court has seemingly held that IF there is a mechanism to compel a witness to come from out-of-state, the prosecution is obliged to use it.

In this case, there does not appear to be a way for a state to compel the United States military to provide one of its members to testify. If there was such a mechanism, Tennessee would be obliged to follow it.

Since there apparently is not (neither the majority nor dissent identify any such mechanism), then the Tennessee state courts acted in an objectively reasonable manner. As a result, the 6th Circuit ruled correctly.

DaveN,
Yeah, but by the time he was in the military and in Germany, the horse was out of the barn. There lack of reasonable effort occurred much earlier, when they knew he was joining the military soon and neglected to subpoena them. I'm surprised the majority didn't bring this up.

Just wanted to point out that this case would be different under Crawford (US 2006). The result is different because it's on federal habeas and the issue therefore is what the SCOTUS law was at the time (the holdings, and possibly the underlying principles).

DaveN, don't you recognize that the prosecutor had the burden under Roberts, as the dissent notes? He didn't do that (i.e., he didn't demonstrate anything).

For example, my 1968 Black's defines "demonstrate" thusly: "To teach by exhibition of samples; to derive from admitted premises by steps of reasoning which admit of no doubt; to prove indubitably. [See] Espenhain v. Barker, 121 Or. 621, 256 P. 766, 768 [(1927) (discussing whether D built a "motor that could be run and shown to the public so that it would demonstrate his invention.").]" Merriam Webster Online defines the term to mean "to show clearly; to prove or make clear by reasoning or evidence."

In Louisiana (and I assume elsewhere), we can in some circumstances filed a "verified petition", which includes a sworn statement (usually by the party filing the pleading) that the allegations in the petition are true. This allows the pleading to be considered as evidence in consideration of a motion for summary judgment or for other purposes requiring the introduction of evidence.

Other than that, I'm not aware of any general rule in any state which would allow the allegations contained in an ordinary motion or other pleading to be considered evidence of any sort at all. Am I unaware of some rule which allows this, in any state?

Dave, I don't necessarily doubt your analysis of the relevant law on unavailability, I just believe that procedurally, there appears to be no evidence in the record to support the trial court's finding. However, I do wonder about your reference to Tennessee law. Of what relevance is Tennessee law to this habeas petition? The only issue raised appears to be whether his federal 6th Amendment right was violated. The majority defers to the state appellate court to make a Roberts determination, not to apply Tennessee law in any way.

I also note in re-reading the decision that the majority's deference to the state court in footnote 3, which acknowledges that a motion is not evidence, but glosses over this problem by saying well, there was some evidence attached to the earlier motions. In addition to overlooking the fact that the representations in the 3rd, no-evidence, motion were material to the state court's determination, this conclusion also seems at odds with the majority's earlier conclusion that the reasonableness of a state's efforts to secure an absent witness is a mixed question of fact and law, which must be reviewed de novo. Deference to the findings of a lower court is incompatible with a de novo review.

One thing, this was apparently taken from the THIRD motion to declare the witness unavailable. And, now, they say it's too late to arrange a flight. Why wasn't the flight arranged after the first or the second.

Because he wasn't allowed to travel then.

Secondly, it says that Shelton was WILLING to travel if he could go through Atlanta Georgia. Who gives a damn if he's willing. You serve a subpoena on him while he's in the state and then its his job to figure out how to get back for trial.

He wasn't in the state. He was in Europe.

PatHMV seems to have it right, but only in part. Why is someone unavailable three separate times?

My comment about Tennessee law has to do with who gets to determine whether the prosecutor's efforts meet the requirements of Tennessee law--as opposed to the Confrontation Clause. IF, under Tennessee law, the prosecutor's statements, without more evidence, are sufficient for the court to consider as a matter of state law, then the Tennessee state courts get to be the arbiters of Tennessee law.

This question is distinct from whether the Confrontation Clause is violated. In habeas corpus, the question is whether the state courts unreasonably applied Supreme Court precedent. The Supreme Court precedent appears to have a continuum.

On the one hand, if there is a mechanism to secure a witness from out of state, the prosecution is obliged to follow it or the Confrontation Clause will be violated. On the other hand, if there is no such mechanism, the Confrontation Clause does not require futile efforts.

That was the issue before the 6th Circuit. For that reason, I stand by my analysis that because there apparently is no mechanism to force a member of the United States military to return to a state to testify in state court, the Tennessee Court of Criminal Appeals did not act in an objectively unreasonable manner in deciding as it did.